Com. v. Ibrahim

• Citation: 68 N.E. 231,184 Mass. 255
• Parties: COMMONWEALTH v. IBRAHIM et al.
• Decision Date: 20 October 1903
• Court: United States State Supreme Judicial Court of Massachusetts

184 Mass. 255

68 N.E. 231

COMMONWEALTH v. IBRAHIM et al.

Supreme Judicial Court of Massachusetts, Worcester.

October 20, 1903

COUNSEL

T. H. Gage, Jr., Frank F. Dresser, and Albert F. Flint, for defendants.

Rockwood Hoar and George S. Taft, for the Commonwealth.

OPINION

KNOWLTON, C.J.

The important question in this case grows out of St. 1899, p 430, c. 409 (Schedule of Forms, 'Murder' [Rev. Laws c. 218, § 67]), in which we find these words following the language which charges the crime: 'And the jurors further say that the defendant is guilty of murder in the second degree, and not in the first degree. This may be added if murder in the first degree is not charged.' The indictment in the present case charges the defendants with murder in the second degree, following this form, and the case, not being considered capital, was tried before one justice, against the objection of the defendants, instead of before two justices. Prior to the enactment of this statute, under St. 1858, p. 126, c. 154, re-enacted in Gen. St. c. 160, §§ 1-7; Pub. St. c. 202, §§ 1-7; Rev. Laws, c. 207, § 1, although the murder might be in the first degree or in the second degree, the indictment always contained charges which, if proved, might constitute murder in the first degree, and the degree of murder was expressly found by the jury at the trial. Com. v. Gardner, 11 Gray, 438; Com. v. Desmarteau, 16 Gray, 1; Opinions of justices, 9 Allen, 585; Green v. Com., 12 Allen, 155, 170-172; Com v. Gilbert, 165 Mass. 45-58, 42 N.E. 336. These statutes and rules of law remain unchanged, except so far as they are modified by the form prescribed for an indictment for murder, and the accompanying statement from which we have quoted. In this there is an express provision for an indictment for murder in the second degree, whenever the grand jury do not deem it their duty to charge murder in the first degree. This language must be given effect, unless there are other provisions or principles of law which render it nugatory.

No question of authority in the Legislature to permit such an indictment is raised. The whole subject, so long as there is no departure from constitutional requirements, is within legislative control. There being different degrees of the same offense, punishable differently, it is in accordance with the general theory of criminal pleading to provide for indictments showing the extent and degree of the criminality charged against the defendant. It is also in accordance with the practice in many of the states which recognize different degrees of murder. See State v. Hamlin, 47 Conn 95-117, 36 Am. Rep. 54; Kennedy v. State, 6 Ind. 485; Fahnestock v. State, 23 Ind. 231; Synder v. State, 59 Ind. 105-107; State v. Bowen, 16 Kan. 475; Ward v. State, 96 Ala. 100, 11 So. 217; State v. Neely, 20 Iowa, 110; State v. Gilchrist, 113 N.C. 673, 18 S.E. 319. There is no good reason, either in principle or practice, why a grand jury should not be permitted in an indictment to charge a defendant with murder either in the first degree or in the second degree, according to their view of the evidence in the case. It seems plain that the Legislature intended to authorize this. The former statutes, which are re-enacted, are left in full force in all cases in which an indictment charges murder generally, which, in legal effect, may be murder in the first degree. In such cases, if the evidence at the trial leads the jury to a verdict of murder in the second degree, they so declare, as they make a like express declaration if they find the defendant guilty of the offense in the more aggravated form included in the charge. The provision that 'the degree of murder is to be found by the jury' does not apply to cases in which no question in regard to the degree of the crime is presented to them. The defendant may plead guilty of murder in the first degree or in the second degree. Green v. Com., 12 Allen, 155. The plea, if accepted, determines his guilt, whether it be of one degree or the other, and the jury of trials do not consider it. In like manner, a provision for an indictment for murder in the second degree does not conflict with this statute as to the duty of the trial jury to find the degree of guilt. It leaves them to perform that duty whenever an indictment in common form is before them, presenting a question as to the degree of the defendant's guilt. We are of opinion that this statute changed the pre-existing law by authorizing grand juries to present indictments for murder in the second degree. The crime charged by such an indictment is not a capital crime. Green v. Com., 12 Allen, 155-173. A capital crime is one punishable with the death of the offender. In this commonwealth, for a long time, a different tribunal has been required for the trial of capital cases from that required for the...